I. Introduction

The liability of owners, lessors, lessees and other occupiers of land for injuries to a person that occur while the person is on the land, are particularly important to those with horses because (1) horses require relatively large areas of land requiring more attention and risk assessment to control potential injuries; (2) horses attract people to ride, or touch,
or simply to admire, particularly children who are unaware of the dangers they are encountering; and (3) horse injuries can potentially be significant given the size and strength of horses.

II. The California Rule

Traditionally, there is a hierarchy of duties toward persons on the land to keep them safe from harm. The common law divided these persons into trespassers, licensees, and invitees, and apportioned the burdens on the land occupier depending upon the category in which the person was placed.

In California, traditional common law was eliminated. Thus, the status of the injured person, or the reason the person is on the land, does not dictate whether any duty is owed. Every landowner or occupier of the land owes a duty of care to third persons who enter the property based upon the general principle that:

“Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.”

Every landowner has a duty to maintain property in his or her possession and control in reasonably safe condition. The question is whether in the management of his property, the possessor of land has acted as a reasonable person under all the circumstances. The likelihood of injury to the plaintiff, the probable consequences of such injury, the burden of reducing or avoiding the risk, the location of the land, and the possessor's degree of control over the risk-creating condition are among the factors considered by the trier-of-fact.  Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 360, 372.

The two primary factors in a landowner’s or occupier’s tort liability are: knowledge and either possession or control of the property or a condition that is dangerous. Liability is based on the fundamental principle of the landowner/occupier’s control over the property and his ability to prevent the harm.

“No man is responsible for that which no man can control.”  California Civil Code section 3526.

Rowland v. Christian (1968) 69 Cal.2d 108, is a landmark California case that abolished the classifications of trespasser, licensee, and invitee, and the common law immunities from liability predicated upon those classifications. Instead, the Supreme Court in Rowland considered the following factors:  (1) closeness of the connection between the injury and the defendant's conduct; (2) the moral blame attached to the defendant's conduct; (3) the policy of preventing future harm; and (4) the prevalence and availability of insurance. 

III. Recreational Use Statutes

Forty-eight states, including California, have enacted the Recreational Use Statutes.  California Civil Code section 846 is a statute that encourages landowners to open their land without charge or a nominal charge to the public for recreational uses. If they do so, they are protected from liability for injuries while on the land in most circumstances. 

In its first paragraph, the statute defines the scope of the immunity granted to California landowners in these words: “An owner of any estate or any other interest in real property, whether possessory or nonpossessory, owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on such premises to persons entering for such purpose, except as provided in this section.”

In its second paragraph, section 846 defines “recreational purpose” by reference to a list of activities that qualify as “recreational,” including all types of “vehicular riding.” In its third paragraph, section 846 states that by allowing another to enter or use property for recreation the property's owner does not “(a) extend any assurance that the premises are safe for such purpose, or (b) constitute the person to whom permission has been granted the legal status of an invitee or licensee to whom a duty of care is owed, or (c) assume responsibility for or incur liability for any injury to person or property caused by any act of such person to whom permission has been granted except as provided in this section.”

Finally, in its fourth paragraph, section 846 provides three limitations on, or exceptions to, the landowner immunity it has granted, stating that the immunity does not apply to “willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity,” nor does it apply when permission to enter is granted for a consideration, nor when persons are expressly invited rather than merely permitted to enter the land.

The California statute provides perhaps the most extensive protection of the land occupier of any recreational use statute in the United States. Although the caption of the statute speaks to land occupier “permission” to enter for recreational purposes, the courts have interpreted the statue to apply to any persons who enter the land of another without paying a fee for recreational purposes. This includes trespassers. 

When the injured party is on the property to engage in recreational activities and has not been charged a fee for doing so, this statue precludes recovery except for injuries caused by a willful or malicious act or omission.

A skateboarder who was injured when he accidentally impaled himself on metal pipe located in a planter in friend's driveway sued friend's parents for negligence and premises liability. The Superior Court, San Diego County, granted summary judgment to friend's parents. Skateboarder appealed. The Court of Appeal affirmed holding that: (1) statutory exception to property owner's immunity from liability to persons using premises for recreational purposes, applicable when owner has expressly invited person to come upon premises, does not require an express invitation to participate in recreational activities; and (2) friend's parents fell within that statutory exception to immunity; but (3) skateboarder was barred from recovery under primary assumption of risk doctrine, even though presence of metal pipe increased severity of injuries.

Recently, the California Supreme Court in Klein interpreted the statute more narrowly in certain circumstances than had previously been applied. Plaintiff Alan Richard Klein was riding a bicycle for recreation on a two-lane paved road in Angeles National Forest in Southern California when he was struck head-on by an automobile driven by a part-time volunteer working for the United States Fish and Wildlife Service. Having been seriously injured in the collision, plaintiff sued the United States government (the owner of the national forest land) and its volunteer worker. The question was whether section 846 shields a landowner from liability for a recreational user's injury caused by the negligent driving of the landowner's employee. They concluded Civil Code section 846’s safe-premises immunity clause does not encompass vehicular negligence claims.

The Court observed that although Civil Code section 846 is commonly referred to as an immunity provision, and although for convenience we refer to it that way here, it is does not confer an immunity in the strictest sense of that term, which is “a complete defense ... [that] does not negate the tort.”  (Black's Law Dict. (1996 pocket ed.) p. 298.  Section 846 does not merely eliminate a damage remedy for certain types of negligent conduct by a landowner. The wording of section 846's first paragraph, providing that a landowner “owes no duty of care” to persons using the land for recreation, either to maintain safe premises or to warn of hazards, does indeed “negate the tort,” because the existence of a duty owed to the injured person is an essential element of the negligence tort.

By the plain meaning of the language in its first paragraph, Civil Code section 846 absolves California landowners of two separate and distinct duties: the duty to “keep the premises safe” for recreational users, and the duty to warn such users of “hazardous conditions, uses of, structures, or activities” on the premises. Civ. Code § 846, 1st par.  Section 846’s third paragraph adds an additional immunity, stating that by granting permission to enter for recreational use a property owner does not extend any assurance that the premises are safe for recreational use, confer on the recreational user the legal status of an invitee or licensee, or assume responsibility for any injury that a recreational user may cause to another person. This latter provision shields the landowner from liability for injuries caused by (rather than to) recreational users.

Nonetheless, the Klein Court concluded that the plain language of Civil Code section 846’s first paragraph, absolving landowners of the safe-premises duty, supports the conclusion that section 846 does not relieve landowners of the duty to avoid vehicular negligence. 

IV.  Case Applications In Equine Settings

When a horse is introduced into the land occupier liability equation, the results sometimes change. The judicial opinions often reflect a mixture of pure land occupier liability rules with rules pertaining to the keeping of domestic animal and the doctrine of strict liability for injuries from domestic animal with known dangerous propensities.  

1. Recreational Use Immunity

A rider, who was injured when her horse slipped on a portion of a public riding trail that crossed the landowner's driveway, brought a personal injury lawsuit against the landowners. The Superior Court of San Diego entered judgment on a jury verdict in favor the landowners. The Court of Appeal affirmed finding that landowner's rights to property at intersection of driveway and trail constituted “interest in real property” within meaning of immunity statute for recreational use, and the “consideration” exception to immunity statute did not apply.

Miller sued the Rancho Santa Fe Association, the organization responsible for maintaining the trail (the Association), and the Weitzens. At trial, Miller put on evidence that about two months before her accident, Jeffrey Weitzen had resurfaced the driveway, including the portion that crossed the riding trail, with a common driveway resurfacing product. He did not obtain a permit prior to doing the resurfacing as was required by San Diego County (the County). The evidence also showed that after the resurfacing, but prior to Miller's accident, the Association had been notified that another horse had fallen in that location. As a result, the Association placed notices on either side of the Weitzens' driveway, warning riders of the slippery condition. The Weitzens testified that they regularly saw the signs, but did not inquire into why they were there. Miller testified that she did not see the signs prior to her fall.

The Court of Appeal found that in light of the broad statutory language and unambiguous legislative intent to protect virtually every species of property “owner” under Civil Code section 846, the statute applied to protect the Weitzens in that case.

With respect to the “consideration” exception to the statute, Miller contended that even if the Weitzens possessed the requisite property interest, her payment of dues to the Riding Club, and the club's subsequent payments to the Association, which maintained the riding trails, constituted sufficient consideration to trigger the statutory exception to section 846. The court disagreed, stating that to trigger the consideration exception of section 846, payment must be made in exchange for “permission to enter” the property or “received from others for the same purpose.”  Johnson v. Unocal (1993) 21 Cal.App.4th at 310, 316-317 [“as regards section 846, we are aware of no cases in which consideration did not involve the actual payment of an entrance fee by plaintiff to defendant”]; Moore v. City of Torrance (1979) 101 Cal.App.3d 66, 72 [“Clearly, consideration means some type of entrance fee or charge for permitting a person to use specially constructed facilities,” such as “amusement facilities in government-owned parks that charge admission fees”].

No such entrance fee was required to use the property at issue in the Miller case. The trail that crossed over the Weitzens' driveway was analogous to a public sidewalk; it was open to any member of the public without charge of any kind. Accordingly, neither Miller nor anyone else paid consideration for “permission to enter” that property (§ 846), and the consideration exception to section 846 did not apply.

2. Landowner’s Liability for Escaping Horse

On August 15, 1981, plaintiffs were traveling in an automobile driven by plaintiff Edward Davert.  The automobile collided with a horse alleged to have escaped from property owned by defendant and others adjacent to the road.

Plaintiffs alleged liability on the part of defendant on two theories: (1) defendant, in his capacity as Deputy Sheriff of the County of Siskiyou, observed the gap or hole in the fence adjacent to the road through which the horse was alleged to have escaped and failed to take precautionary measures, and (2) defendant owned a 1/2500 undivided interest in the property from which the horse escaped.

On October 7, 1983, defendant moved for summary judgment arguing that, in his capacity as Deputy Sheriff, he owed no duty of care towards plaintiffs absent a special relationship and that he owed no duty of care to plaintiffs as a landowner because he took title to his interest in the property subject to a recorded declaration of covenants, conditions and restrictions delegating exclusive control over the subject property to defendant R-Ranch Property Owners Association. The trial court granted the motion, and plaintiffs appealed.

The Court of Appeal reversed first noting that the law is well settled that an owner or occupier of land is required to exercise ordinary care in the management of his property and the breach of such duty constitutes actionable negligence.  Civil Code § 1714, subd. (a).  The Court went on the say, “It is clear that considerations of public policy require that any departure from the common law rule of liability of individual owners of property in common cannot operate to the substantial detriment of third parties  Lipson v. Superior Court (1982) 31 Cal.3d 362, 372.  Since California law does not require insurance to protect third parties in the case of common area torts, relieving individual owners in common of liability would eliminate any motivation on the part of any party to exercise due care in the management and control of commonly owned property and could leave third parties with no remedy at law.

The Court further did not believe that tenants in common of real property who delegate the control and management of the property to a separate legal entity should not be immunized from liability to third parties for tortious conduct.

3. Riding Stable Liability – Assumption of the Risk Defense

This was an action by a horseback rider for personal injuries sustained in a fall from a rented horse. Plaintiff, in the company of a young man (hereinafter referred to as Varolli), went to defendant's riding stable on June 26, 1962 for the purpose of renting a horse to ride in the area of Griffith Park. Plaintiff had rented and ridden a horse from defendant's stable four or five times previously over past years. She was not an experienced horsewoman and had never had riding lessons, though she had some verbal instructions in the art of riding.

On arrival at defendant's stable, she requested the same horse she had ridden previously. The horse, Kro, was not available. She requested a horse of like gentle character, and a horse, presumably Joker, was produced. Joker was saddled with a western saddle Varolli obtained a horse similarly saddled, and they rode away from the stables toward the bridlepath of Griffith Park. When some 30 or 50 feet from the stables, plaintiff recognized that Joker required strong reining and that he appeared strong-headed. Joker proceeded at a quicker pace than did Varolli's horse, and at the time of the accident was an estimated 50 feet ahead and, due to the conformation of the terrain, out of view of Varolli.

During the course of the ride, which took from 20 to 30 minutes from the time of rental to the time of the accident, plaintiff met several persons riding along the trial or path.  There was testimony that during this time Joker pulled from side to side, pranced sideways, and wanted to pull away from her. Though the testimony varies considerably on the point, there is some testimony of witnesses that plaintiff was not walking Joker, but was riding rather recklessly. She would let the horse canter then pull him up short, and was admonished to slow down; that the plaintiff responded to the admonition by saying she could handle the horse or was capable of handling the horse. Other testimony was that as the plaintiff and witness Kinkade, another girl, rode side by side on the path discussing their respective mounts, plaintiff said she had a spirited horse.

The Court found in favor of plaintiff. In so doing, it reasoned that the facts could reasonably be construed to indicate a knowledge of danger by plaintiff, when she left the stable, but the suggestion in stable signs giving notice of general risk to a rider did not strengthen defendant's case. The second contention of defendant to the effect that the evidence failed to show that defendant knew, or in the exercise of reasonable care could have ascertained, that the horse would be unmanageable or dangerous was without merit. From the very evidence upon which defendant relied to establish the necessary elements of assumption of risk, the propensity of the animal becomes apparent. The only question then is whether the dangerous propensity was known or could have been known to defendant at the time of the rental.

The expert opinion went directly to the issue of negligence on the part of the stable operators in renting a horse with a dangerous propensity to a person unknowledgeable of such propensity. The expert opinion as to the ability of a qualified and experienced horseman to ascertain the dangerous propensities of an animal before they were obviously exhibited placed the issue as to the care exercised by defendant squarely in issue.

The defendant urged that there was no evidence to establish a causal connection between plaintiff's injury and defendant's negligence. The Court of Appeal disagreed.  Negligence of defendant was before the jury through the testimony of the expert. Certainly if an expert horseman could tell if a horse had dangerous characteristics by proper observation of the horse, defendant's failure to make such observation was negligence.  There was no necessity for plaintiff to establish prior acts of the horse and knowledge thereof by defendant. The Court reasoned that the least that the public can expect is that a public stable operator has that quantum of expertise experienced horsemen possess.

The following are facts from an actual case dealing with a riding accident. Read the fact scenario, and answer how you think the court ruled.

Charlene and four other persons went on a trail ride escorted by two wranglers. About 20 to 30 minutes into the ride, one of the young girls complained she was cold.  Charlene decided to give the jacket she was wearing to the young girl. Having experienced no problems with the horse during the ride, Charlene wrapped the reins around the saddle horn. She then started to remove her jacket from her shoulders.  While both of her arms were still in the sleeves and caught behind her, the horse suddenly spooked. Charlene tried, but was unable, to remain on the panicked horse.  When the horse bucked for the second time, Charlene was thrown to the ground landing on her tailbone.

Unbeknown to Charlene, on a previous ride, this same horse had spooked and thrown a rider when that rider took off and waved a hat. The wranglers neither warned Charlene of this prior incident nor did they re-train the horse to avoid the recurrence of a similar incident.

Charlene claimed that the Ranch was negligent (a) in not providing a safe horse for her to ride and (b) that the Ranch had a duty to warn her of the horse's propensity to spook.  Is she correct?

In this case, a customer brought a negligence action against resort and riding stable for injuries she sustained when she was thrown from horse. The Superior Court, Los Angeles County granted summary judgment for defendants, and the customer appealed. The Court of Appeal reversed, and review was granted, The Supreme Court granted review, and transferred the case back to Court of Appeal with directions to vacate its decision and to reconsider.

On reconsideration, the Court of Appeal held that that “horseback riding, even the rather tame sport of riding on the back of walking horses in an afternoon trail ride, carries some inherent risk of injury. A horse can stumble or rear or suddenly break into a gallop, any of which may throw the rider.” This does not mean a commercial operator of a horse-riding facility owes no duty of care and can never be liable for injuries suffered when a horse acts in a dangerous manner. Such an operator “has a duty to supply horses which are not unduly dangerous ... [and a] duty to warn the patrons renting a horse if that horse has evidenced a predisposition to behave in ways which add to the ordinary risk of horse riding.”

The operator also has a duty “not to provide faulty saddles, bridles and other equipment, not to provide dangerous trails, not to provide horses that are shod poorly-and the list can go on and on.” However, courts may not impose “a duty on stable owners to provide “ideal” riding horses such that they never buck, bite, break into a trot, stumble or ‘spook when confronted by a frightening event on the trail such as a shadow or snake or react to peculiar movements of a rider such as excessive spurring or waving of a coat as in this case. The court viewed the sudden movements of a horse just as inherent in horseback riding as the presence of moguls on a ski slope are to skiers.

The Harrold court concluded that the defendant stable operator had no duty to warn the plaintiff that a horse she selected on her own had recently spooked and thrown a rider. “Public policy supports not imposing a duty on commercial operators of horse-renting facilities which provide supervised trail rides, to supply ‘”ideal” horses, but the Court stopped short of eliminating any duty such as a duty to warn of a dangerous propensity in a given horse.”

The court found no duty to warn in that case because, in its opinion, “the one prior incident of the subject horse having spooked did not rise to the level of a dangerous propensity. It did rise to the level of a “horse behaving as a horse” with no incumbent duty on the part of the stable operator. To impose some sort of duty on a lessor of horses when a “horse acts as a horse” is to tell the commercial world that strict liability is imposed for any action of a horse inherent in horseback riding, with the concomi[tant] result that in all probability all commercial horseback riding would cease because of the liability involved.

Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476 - Release of Liability And Assumption of Risk.

In Cohen, the patron of a riding stable who fell from a rented horse during a guided trail ride brought action against operator of stable for negligence. The Superior Court, Marin County, granted summary judgment for the operator. The patron appealed. The Court of Appeal reversed holding that the risk of injury from the operator's employee's alleged negligence was not within scope of release, and a fact issue existed as to whether the employee (the one guiding the trail ride) recklessly galloped his horse.

Susan Cohen sustained injury as a result of a fall from a horse during a guided trail ride provided her by respondent Five Brooks Stable. Two questions were presented on appeal: whether by signing a “Visitor's Acknowledgement of Risk” (the Release) Cohen expressly waived her negligence claim and, if not, whether the stable operator is nevertheless exonerated by the doctrine of primary assumption of risk.

a.  Written Release of Liability

A written release may exculpate an alleged wrongdoer from future negligence or misconduct. To be effective, such a release “must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties.” The release need not achieve perfection.

The scope of a release is determined by its express language. “The express terms of the release must be applicable to the particular negligence of the defendant, but every possible specific act of negligence of the defendant need not be spelled out in the agreement. When a release expressly releases the defendant from any liability, it is not necessary that the plaintiff have had a specific knowledge of the particular risk that ultimately caused the injury. If a release of all liability is given, the release applies to any negligence of the defendant. “It is only necessary that the act of negligence, which results in injury to the releaser, be reasonably related to the object or purpose for which the release is given.” As the courts have said, “[t]he issue is not whether the particular risk of injury is inherent in the recreational activity to which the release applies, but rather the scope of the release.”

It was indisputable, that the risks to which the Release applied in Cohen were those inherent in horseback riding. As the Release states, “[c]ertain risks cannot be eliminated [from horseback riding] without destroying the unique character of this activity. The same elements that contribute to the unique character of this activity can be causes of loss or damage to your equipment, or accidental injury, illness, or in extreme cases, permanent trauma or death. We do not want to frighten you or reduce your enthusiasm for this activity, but we do think that it is important for you to know, in advance, what to expect, and to be informed of the inherent risks.  The following describes some, but not all, of these risks.”  (Italics added.) The description in the Release of “some, but not all,” of the inherent risks, includes the risk that “[a]ll horses, even those that are well trained and appear calm and docile, may and will buck, rear, kick, bite, run and bolt uncontrollably,” and this risk “may occur without warning and without apparent cause . . . in response to external stimuli (such as . . . movement of people [and] other horses . . .). . .” By signing the Release, the plaintiff expressly agreed “to assume responsibility for the risks identified herein and those risks not specifically identified.”

Clearly, all of the risks explicitly described in the Release arise from the stated fact that even well trained horses “may and will buck, run, kick, bite, run and bolt uncontrollably . . . without warning and without apparent cause”- are inherent in horseback riding. As noted, the paragraph in which those risks are described followed directly after the statement that, in order to inform the signer of the Release “of the inherent risks [,][t]he following describes some, but not all, of these risks” (italics added), i.e., “some, but not all” of the risks inherent in horseback riding. Whether “those risks not specifically identified” are also limited to risks inherent in horseback riding was, however, unclear.

The problematic language to the court consisted of the following two sentences in the Release: “I understand that the [previous] description of these [i.e., inherent] risks is not complete and that other unknown or unanticipated risks may result in injury or death. I agree to assume responsibility for the risks identified herein and those risks not specifically identified.” (Italics added.) The “risks not specifically identified” could refer to the risks inherent in horseback riding left unidentified by the phrase “some, but not all,” which seemed to the court the most reasonable assumption, but it might also refer to risks arising out of defendant’s negligence that increased  the inherent risks. Because an interpretation of the reference in the Release to “those risks not specifically identified” as pertaining only to unspecified risks inherent in horseback riding is “semantically reasonable” the Release was ambiguous, and the ambiguity must be resolved against respondent, the drafter of the instrument.  Civil Code § 1654.

The complaint alleged that the riding stable violated its duty to use care not to increase any of the risks inherent in horseback riding. The trial court apparently granted summary judgment on the theory that the risks “not specifically identified” in the Release included the risk that misconduct of respondent or its employee might increase a risk inherent in horseback riding. The Court of Appeal found the trial court’s interpretation of the Release erroneous. The trial court not only improperly resolved the ambiguity in favor of the drafter, but ignored the principle that a Release relieves a defendant of the consequences of its own negligence only if it does so in “clear, unambiguous, and explicit” language.

“The Restatement Second of Torts aptly states: ‘In order for the agreement to assume the risk to be effective, it must also appear that its terms were intended by both parties to apply to the particular conduct of the defendant which has caused the harm. Again, where the agreement is drawn by the defendant and the plaintiff passively accepts it, its terms will ordinarily be construed strictly against the defendant.’ Rest.2d Tort, § 496B, com. d, p. 566.) The Court of Appeal held that the Release presented to plaintiff clearly did  not unambiguously, let alone explicitly, release the riding stable from liability for injuries caused by its negligence or that of its agents and employees which increase a risk inherent in horseback riding.

“The presence of a clear and unequivocal waiver with specific reference to a defendant's negligence is a distinct requirement where the defendant seeks to use the agreement to escape responsibility for the consequences of his negligence”. This does not mean use of the word “negligence” or any particular verbiage is essential, but that the release must inform the releasor that it applies to misconduct on the part of the release.

The Court of Appeal found that the Release before it clearly did not. The word “negligence” is used but once, and in a way that refers only to plaintiff’s negligence, not that of defendant.  After a sentence in which appellant certifies that “I am fully capable of participating in this activity,” the Release states: “Therefore, I assume full responsibility for myself, including my minor children, for bodily injury, death and loss of personal property and expenses thereof as a result of those inherent risks and dangers and of my negligence in participating in this activity.”  (Italics added.)

Nothing in the Release clearly, unambiguously, and explicitly indicates that it applies to risks and dangers attributable to respondent's negligence or that of an employee that may not be inherent in supervised recreational trail riding.  Nor does the Release indicate that it covers any and all injuries arising out of or connected with the use of respondent's facilities. The Release did not relieve the riding stable of liability from “any and all claims and liability arising out of [its] ordinary negligence” which causes injury to the releaser, and the Release did not exempt respondent “from liability for any personal injury suffered while on [defendant’s] premises.”

Indeed, the Court of Appeal found that the language of the Release plaintiff signed hardly relates at all to respondent's conduct, let alone the particular conduct alleged to have caused the harm appellant suffered. A fair reading of the entire Release compelled the Court to conclude that it did not make clear to an ordinary person untrained in the law that its purpose and effect is to release claims for one's own personal injuries resulting from respondent's negligent acts, including misconduct that increases a risk inherent in horseback riding. On the contrary, a person who understandingly signed the Release cannot be deemed to have waived any hazard other than those inherent in the trail riding of horses. Stated differently, the Release did no more than subject plaintiff to a legal principle-the doctrine of primary assumption of risk-that would apply even if the Release did not exist.

b. Primary Assumption of Risk

The California Supreme Court in Knight v. Jewett (1993) 3 Cal.4th 296 recognized that careless conduct by co-participants is an inherent risk in many sports, and that holding participants liable for resulting injuries would discourage vigorous competition. For that reason, persons involved in a sporting activity do not have a duty to reduce the risk of harm inherent in the sport itself. However, Knight, and its progeny (see, e.g., Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 162 also explained that such persons do have a duty not to increase such inherent risks. Thus, sports participants have a limited duty of care that is breached only if they intentionally injure co-participants or “engage[ ] in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.”  Knight, supra, at 320.

In the Cohen case, the plaintiff did not complain about the conduct of the horse assigned her, but about that of the trail guide she was provided. A spooked horse that throws a rider may be a “horse acting as a horse,” but a trail guide who unexpectedly provokes a horse to bolt and run without warning its rider was not in the Court’s opinion a “trail guide acting as a trail guide.” This was particularly true where Wimple testified that “many” of the riders he supervised “are riding for the first time or haven't ridden for a while.”

The Court of Appeal concluded that the trier-of-fact would need to consider both the nature of trail riding and the totality of circumstances surrounding plaintiff’s injury. Without attempting to identify all of the relevant factors, those factors would likely include the skill levels of  plaintiff and the other riders in her group, rules pertaining to the use of Olema Valley trails, instructions Wimple may have received from his employer, whether a competent trail guide would know other horses would instinctively follow the pace of his lead horse, and whether Wimple was able to observe all of the riders in his group at the time he accelerated the pace of his horse.

4. Horse Trainer [Coach] Liability For Injuries Suffered By Student

In this case, an equestrian competitor's parents brought an action against the competitor's coach for wrongful death and negligent infliction of emotional distress. The Superior Court, Riverside County, granted summary judgment for coach. The parents appealed.

The Court of Appeal held that:

1. the coach owed duty not to unreasonably increase risk inherent in the sport by allowing competitor to ride unfit horse;

2.  a fact issue existed as to whether coach had responsibility to determine whether competitor's horse was fit;

3.  a fact issue existed as to whether competitor's horse was fit;

4.  a fact issue existed as to whether coach knew or should have known of competitor's horse's unfitness; and

5.  coach's alleged acts could equate to gross negligence precluding reliance on release agreement as affirmative defense.

The Eriksson court reviewed case law relating to equestrian coaches, noting as follows.  Shortly after Knight v. Jewett, the issue of primary assumption of the risk was addressed in two decisions involving the liability of equestrian coaches: Tan v. Goddard (1993) 13 Cal.App.4th 1528 (Tan) and Galardi v. Seahorse Riding Club (1993) 16 Cal.App.4th 817 (Galardi).  

In Tan, the plaintiff, Joo Leong Tan, was a student at the defendant's school for training horse jockeys. One of the school's horse trainers, Bill Davis, told Tan that one of the horses, Faraway Falcon, had injured its left foot and that Tan “should ride the horse easily ‘to see how it was. Tan found that Faraway Falcon did not walk or behave normally. He reported this to the trainer and asked whether the horse was fit to ride.  The trainer assured him it was and gave Tan instructions on where and how to ride the horse.  Tan followed the instructions. Later, with the knowledge that the horse “was still ‘off,’ “ the trainer instructed Tan to jog the horse on the school's outer track in a direction opposite from that in which horses are normally ridden. The outer track was very rocky. Tan followed the instructor's direction. The horse “went down on the track,” injuring Tan.

After discussing Knight, the Tan court found it distinguishable. “Our case,” the court began, “is different. Here, we do not deal with the relationship between coparticipants in a sport, or with the duty that an operator may or may not owe to a spectator. Instead, we deal with the duty of a coach or trainer to a student who has entrusted himself to the former's tutelage. There are precedents reaching back for most of this century that find an absence of duty to coparticipants and, often, to spectators, but the law is otherwise as applied to coaches and instructors.  For them, the general rule is that coaches and instructors owe a duty of due care to persons in their charge. [Citations.] The coach or instructor is not, of course, an insurer [citation], and a student may be held to notice that which is obvious and to ask appropriate questions [citations]. But all of the authorities that comment on the issue have recognized the existence of a duty of care.

In Tan, the student placed himself in the hands of the jockey school's riding trainer. He did what the instructor, Davis, told him to do. Davis was not a coparticipant in sport with Tan, but was charged with instructing him how to ride a horse. It was Davis who assigned Faraway Falcon to Tan to ride, knowing that the horse was “off” due to an injury; it was Davis who told Tan to jog the horse on the outer track on the school's premises; and it was he who knew, or should have known, of the rocky condition of that track.”  The court concluded that “Davis's role as riding instructor to Tan was such that he owed Tan a duty of ordinary care to see to it that the horse he assigned Tan to ride was safe to ride under the conditions he prescribed for that activity.”

In Galardi, the plaintiff, Leslie Galardi, was an accomplished equestrian who had, for years, appeared in horse shows involving performance jumps and obstacles of various types. She was preparing for an upcoming show with her horse, Tomboy, at the defendant's riding club. With Galardi's knowledge, an instructor at the club twice raised the height of two jumps without lengthening the distance between them. The trainer then asked Galradi to ride through the course backward. The horse successfully jumped the first jump but landed too close to the second jump. The horse popped up into the air and knocked down the second jump, causing Galardi to fall and sustain injuries.

The Court of Appeal in Galardi reversed summary judgment in favor of the instructor and coach, explaining: “Clearly, the sport of horse jumping has the inherent risk that both horse and rider will fall and suffer injury. The basic competitive character of the sport involves engaging increasingly higher jumps and at shorter intervals until at some point the competitors can no longer clear the obstacles without substantial contact. Collisions with the jumps and ensuing falls are thus an integral part of the sport. Riders may also fall from the horse as the result of other conditions such as a balking or stumbling mount.  Such risks were clearly among those which plaintiff here knowingly encountered during her training, when the jumps were raised, intervals became more hazardous, and directions were reversed.”

However, the court continued:  “the occasion of plaintiff's fall and injury was not during competition with other riders. Instead, she had placed her training in the hands of defendants, who were employed to instruct and coach her. Their responsibilities were directly to plaintiff. While other riders, as coparticipants, would not have any special duty of care to plaintiff during competition to ensure she did not fall, defendants certainly had a duty to avoid an unreasonable risk of injury to plaintiff and to take care that the jumping array was not beyond the capability of horse and rider. Of course, the risk of injury, inherent in plaintiff's activity, cannot be eliminated and in fact creates the challenge which defines the sport.

The complaint and evidence presented in Galardi, created a question of fact concerning whether defendants, who, we may infer, had knowledge and experience concerning the sport of horse jumping superior to that of plaintiff, negligently deployed the jumps at unsafe heights or intervals and thereby breached the duty owed to plaintiff.”

The Eriksson court stated that the following principles can be distilled from Tam and Galardi. Among others reviewed:  To the extent a duty is alleged against a coach for “pushing” and/or “challenging” a student to improve and advance, the plaintiff must show that the coach intended to cause the student's injury or engaged in reckless conduct-that is, conduct totally outside the range of the ordinary activity involved in teaching or coaching the sport. Furthermore, a coach has a duty of ordinary care not to increase the risk of injury to a student by encouraging or allowing the student to participate in the sport when he or she is physically unfit to participate or by allowing the student to use unsafe equipment or instruments.

That being said, the Eriksson court followed the underlying policy of not creating a “chilling effect on the activity itself, nor ... interfer[ing] with the ability of the instructor to teach the student new or better skills.” In accordance with Knight, the court said it must be concerned with the possibility that subjecting an equestrian coach to liability will “alter the nature of an active sport or chill vigorous participation in the activity.” If, for example, a coach could be liable for encouraging a student to enter a two star equestrian event when the student was not ready for the challenge, the coach might be reluctant to push the student to that next level of skill. However, in the Erikssons’ complaint, this was not the basis for their claim. Rather, they were asserting that Nunnink increased the risk inherent in the sport by sending Mia out to compete in a difficult cross-country course on a horse that was unfit, and that she concealed from or misrepresented the horse's condition to Karan (Mia’s Mother and whose permission Mia needed to compete).

5.  Social Guest Injured After Falling Off Horse

 Accident:

In May 2005, defendants Bert and Anne Owens hosted a barbeque at their cattle ranch in celebration of a recent victory of plaintiff Ellyn Levinson, an attorney representing the California Department of Conservation. Pleased with the outcome, Bert Owens invited Levinson, and others who had an interest in the litigation, to come to the ranch for a barbeque. Levinson brought her daughter, Rachel.

Prior to the barbeque, Levinson inquired whether she and Rachel would be able to do some horseback riding while at the ranch. Anne Owens asked if Levinson had ridden horses before; Levinson said that she had. Impressed with Levinson's confident demeanor and competence as an attorney, Anne did not further question Levinson's riding ability. Anne explained: “I took her [statement] that she's ridden [to mean that] she's ridden.”

Before the barbeque was served, guests who expressed interest in horseback riding (including Levinson, Rachel, and Susan Oliva, the wife of a Department of Conservation lawyer) walked to the barn. A horse named Tango was already saddled, having been worked earlier in the day. Oliva was selected to ride Tango because she wanted a horse that was “really tired” and would do nothing more than walk around.  Pistol, a quarter horse trained as a cattle horse, was saddled by Rachel and Bert for Rachel to ride. When Rachel changed her mind and decided not to ride, Levinson volunteered, “I'll get on the horse,” and mounted Pistol. Because Levinson and Oliva earlier said that they had ridden horses before, Bert did not ask again whether they had horseback riding experience.

As Bert was adjusting the stirrups for her feet, Levinson pulled back on the reins, causing Pistol to rear his head up and begin to move around. Bert responded: “Don't pull back on the reins; the horse is sensitive.” At this point, one of the guests at the barbeque asked Levinson if she had ridden a horse before. Levinson told the woman she rode a horse “at the park.” Aside from the rearing motion when Levinson pulled back on the reins, Pistol did nothing to make Levinson feel uncomfortable about being on the horse. Bert then led Levinson and Pistol into a small corral where Oliva and Tango were already waiting; the women walked their horses around the small corral for several minutes before Bert opened the gate separating the small corral from a large field, which was also described as a pasture or big corral. Neither Levinson nor Oliva had any problems riding the horses in the small corral.

When Levinson and Pistol entered the larger field, Pistol unexpectedly began to trot and then broke into a gallop. As Pistol galloped back to the small corral, Levinson's feet came out of the stirrups. Rather than pull back on the reins to try to slow Pistol down, she let go of the reins and held onto the saddle horn in an attempt to stay on the horse. When Pistol reached the corner of the small corral, he abruptly cut to the left, throwing Levinson from his back. Levinson's body slammed into a fence and ended up in a feed bunk. Her hip was shattered and her face was cut by barbed wire at the top of the fence.

Pistol's Disposition and Training as a Cattle Horse

No one at the barbeque had any idea what possessed Pistol to bolt from the larger field into the small corral with such tragic consequences. Bert and Anne described Pistol as a gentle and well-behaved horse. Nothing in the record contradicts this description. Pistol was comfortable around people at the barbeque and calmly allowed himself to be surrounded by guests who wanted to pet him. Before galloping away with Levinson, Pistol gave no indication that riding him would present a problem. And, prior to this incident, Pistol had “never run off or hurt anyone” while he was being ridden.

In fact, Pistol is “finely trained” for sorting cattle on the ranch and for reining and team penning events at amateur competitions. For working cattle on the ranch, Pistol is “trained to respond to the rider's directives and separate out one particular cow from the herd. When the rider places Pistol's head in the direction of the specific cow that is to be separated, the horse understands and takes the appropriate action to accomplish this.” With guidance from the rider, Pistol applies pressure to the cow, moving closer to the cow in order to coerce it into moving in the direction the rider wants the cow to go-usually through a gate. A trained cattle horse must be able to quickly turn on his hind legs in order to outmaneuver the cow.

The Complaint

Levinson and her daughter Rachel (plaintiffs) sued Bert and Anne (defendants) for negligence and negligent infliction of emotional distress, alleging that, among other things, defendants “had a duty not to increase the inherent risk of horseback riding” and “breached this duty and increased the risk inherent in horseback riding by selecting a horse that, by its very nature, training and disposition, was inappropriate, unsafe and unduly dangerous for a beginner rider such as [Levinson], to wit: the horse Pistol” and by “instructing [Levinson] never to pull back on the horse's reins.” Plaintiffs further alleged defendants' negligence caused Levinson to experience physical injury, pain and suffering, and loss of earnings, and caused Rachel to suffer severe emotional distress as a result of having witnessed the accident and injury to her mother.

Legal Analysis

The issue in this case was whether public policy requires that a duty be imposed on a rancher who allows a guest, at [the guest's] request, to ride [the rancher's] horse at a picnic on the ranch?

The trial court analyzed the issue as follows:

The defendants are ranchers. Their purpose that day was to accommodate their lawyer who wanted to ride a horse. The Court does not find that just because the horse was used to separate cows on the ranch, or that the horse was used in competition, somehow increased the Plaintiff's risk . . . The evidence showed that the defendants were not coaches, instructors, or in the business of renting out horses. There was no evidence of propensity for this horse to bolt for no apparent reason. There was no evidence that the horse was spooked, or that the Plaintiff inadvertently gave the horse a command which resulted in the horse bolting, stopping and spinning. The only explanation given was that the horse was just being a horse.

In this case, the plaintiff disclosed that she had ridden a horse before. She got on the horse by herself, she looked in control, and there was nothing to suggest that she did not know what she was doing. The Court found that to impose a duty under these circumstances would not be in the interest of public policy, and it would have a chilling effect on all ranchers throughout the state. Lastly, the Court found that the defendants did nothing to increase the plaintiff's risk.” Judgment was entered in defendants' favor.

The Court of Appeal affirmed, reasoning that those who participate in such a sporting activity generally assume the risk that they may be injured while doing so. And others having a role in the activity “generally have no legal duty to eliminate (or protect a [participant] against) risks inherent in the sport itself,” such as the “careless conduct of others” who are participating in the sport.  

In this case, defendants were not a commercial enterprise that rents horses for riding. They were not, and did not purport to be, horseback riding coaches or instructors. They were not riding horses with Levinson when she was injured. And they were not organizers or sponsors of a horseback riding event, i.e., they did not invite anyone to their ranch for the purpose of horseback riding. Simply because defendants provided the means (Pistol) by which Levinson engaged in the inherently dangerous sport of horseback riding, the principles of primary assumption of the risk apply.

Defendants' relationship with Levinson (as her social hosts who did not organize a horseback riding event, who were not commercial operators whose services and horses were for hire by Levinson, and who simply granted Levinson's request to ride one of their horses while she was at a gathering of friends for a barbeque) and the nature of the sporting activity requested by Levinson (an unsupervised ride on a horse used on a cattle ranch, not a supervised trail ride on a horse provided by a commercial entity) are relevant to the questions of the extent of defendants' duty to the Levinson and whether defendants could be found to have recklessly increased the risks of harm inherent in horseback riding.

The above article and all articles in this website are not intended to be legal advice. Readers should consult an attorney to determine how the law applies to their particular circumstances. Also, please understand that the law constantly evolves and changes. Certain of the decisions and legal propositions quoted in the above article may be out of date or superseded. Questions or comments about the above article can be directed to its author, Theresa LaVoie.

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